As filed with the Securities and Exchange Commission on September 3, 2003
Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under The Securities Act of 1933
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NANOMETRICS INCORPORATED
(Exact name of Registrant as specified in its charter)
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CALIFORNIA 94-2276314
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1550 Buckeye Drive
Milpitas, California 95035
(Address of principal executive offices) (Zip code)
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NANOMETRICS INCORPORATED
2003 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
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John D. Heaton
Chief Executive Officer
Nanometrics Incorporated
1550 Buckeye Drive
Milpitas, California 95035
(Name and address of agent for service)
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(408) 435-9600
(Telephone number, including area code, of agent for service)
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Copy to:
Aaron J. Alter, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
(650) 493-9300
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CALCULATION OF REGISTRATION FEE
========================================= ========================= ====================== ====================== ==================
Proposed Maximum Proposed Maximum Amount of
Title of Securities to Amount to be Offering Price Aggregate Offering Registration
be Registered Registered (1) Per Share (2) Price (2) Fee
----------------------------------------- ------------------------- ---------------------- ---------------------- ------------------
Common Stock, no par value
To be issued under the Nanometrics
Incorporated 2003 Employee Stock
Purchase Plan................... 750,000 $7.105 $5,328,750 $432
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(1) This Registration Statement also covers any additional shares of Common
Stock that may be offered or issued under the 2003 Employee Stock Purchase
Plan as a result of any stock dividends, stock splits, recapitalizations
or any other similar transactions.
(2) Estimated in accordance with Rules 457(h)(1) and 457(c) under the
Securities Act of 1933, as amended, solely for the purpose of calculating
the registration fee. The computation is based on the average of the high
and low prices as reported on The Nasdaq National Market on August 27,
2003, as the price at which the shares will be granted in the future is
not currently determinable.
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NANOMETRICS INCORPORATED
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents and information previously filed with the
Securities and Exchange Commission (the "SEC") by Nanometrics Incorporated (the
"Company" or the "Registrant") are hereby incorporated by reference in this
Registration Statement:
(1) the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 2002 filed pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), on
March 28, 2003;
(2) the Company's quarterly report on Form 10-Q for the fiscal
quarter ended March 31, 2003, filed with the SEC on May 13, 2003;
(3) the Company's quarterly report on Form 10-Q for the fiscal
quarter ended June 30, 2003, filed with the SEC on August 11, 2003; and
(4) the description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-A, dated April 29, 1985,
filed pursuant to Section 12(g) of the Exchange Act, including any
amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be part
hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Section 317 of the California Corporations Code authorizes a court to
award, or a corporation's Board of Directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act. Article V of the Company's Amended
and Restated Articles of Incorporation and Article VI of the Company's Bylaws
provide for indemnification of its directors, officers, employees and
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other agents to the maximum extent permitted by the California Corporations
Code. In addition, the Company has entered into indemnification agreements with
its officers and directors.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibits listed on the accompanying Exhibit Index are filed as part
hereof, or incorporated by reference into, this registration statement (see
Exhibit Index below).
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement to include
any material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Milpitas, State of California, on this 29th day of
August, 2003.
NANOMETRICS INCORPORATED
/s/ John D. Heaton
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John D. Heaton
Chief Executive Officer and President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John D. Heaton and Paul B. Nolan,
jointly and severally, his attorney-in-fact, each with power of substitution,
for him in any and all capacities, to sign any amendments to this Registration
Statement on Form S-8, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that each of said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons on behalf
of the Registrant in the capacities indicated below on this 29th day of August,
2003.
/s/ Vincent J. Coates
----------------------------- Chairman of the Board of Directors and Secretary
Vincent J. Coates
/s/ Paul B. Nolan
---------------------------- Chief Financial Officer and Vice President
Paul B. Nolan (Principal Accounting and Financial Officer)
/s/ Nathaniel Brenner
----------------------------- Director
Nathaniel Brenner
/s/ John D. Heaton
----------------------------- President, Chief Executive Officer and Director
John D. Heaton
/s/ Edmond R. Ward
----------------------------- Director
Edmond R. Ward
/s/ William G. Oldham
----------------------------- Director
William G. Oldham
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NANOMETRICS INCORPORATED
REGISTRATION STATEMENT ON FORM S-8
EXHIBIT INDEX
Exhibit
Number Description
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4.1 Nanometrics Incorporated 2003 Employee Stock Purchase
Plan.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati,
Professional Corporation, as to legality of
securities being registered.
23.1 Independent Auditors' Consent.
23.2 Consent of Wilson Sonsini Goodrich & Rosati,
Professional Corporation (contained in Exhibit 5.1).
24.1 Power of Attorney (contained on signature page
hereto).